Saturday, June 29, 2019
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Some judges who retire long before retirement tend to favour govt. Source: Pixabay

A study of Supreme Court cases found that judges who retire with enough time before elections tend to side with government in important cases

“Independence can be undermined in different ways and one of them is offering post-retirement benefits immediately upon retirement” 
 

- Senior lawyer Indira Jaising in 2015 commenting on appointment of former Chief Justice of India H. L. Dattuto as chairperson of the National Human Rights Commission

THE DEBATE on propriety of judges accepting post-retirement jobs from the government has been going on for a long time. A study has now found evidence that many judges, on threshold of their retirements, tend to favour the government in lure of such incentives. (The study can be downloaded below).

The probability of the government winning a case more than doubles when decided by a bench with both judges retiring at least 16 months before the Lok Sabha election, enough time for the government to reward them. The case, however, has to be of special importance to the government. 

The researchers from the Singapore Management University, University of Portsmouth and Malaysia-based Monash University looked at 652 cases decided by the Supreme Court of India between 1999 and 2014 involving the government. They picked up cases decided by two judge benches where both the judges had retired before March 2015 which was the date for data collection for the study. 

Probability of govt winning a case more than doubles when decided by a bench with both judges retiring at least 16 months before elections

They also collected data on government positions taken up by the Supreme Court judges after retirement and found that those who retired at least 16 months before an election were more likely to obtain such a job. The importance of the case to the government was decided by appearance of attorney general, solicitors general, senior advocates and number of total lawyers from the government’s side.

Appointments to government positions are considered prestigious and desirable by judges, as these enable them to continue influencing policy. This appointment process is not transparent and is widely believed to be subject to lobbying by judges and internal machinations within the government.

Hence, although the government has no active role in appointing judges to the Supreme Court, it wields substantial influence over them by controlling their post-Supreme Court job prospects. Examples of the prestigious post-retirement appointments include Chairman or Member of the National Human Right Commission, Competition Appellate Tribunal, Law Commission of India and Press Council of India.

Writing the judgement brings more visibility and hence more chance of being rewarded

When it comes to prominent cases, the government had a 14–27 percent chance of winning them when the both judges of the bench retire shortly before an election. If one of the judges was retiring long before an election, the probability of a government win jumped further by 26 to 33 percentage points. When both the judges retired much before elections, the likelihood of a government win jumped by 35 to 43 percentage points over a bench with both judges retiring shortly before an election.

“These findings suggest the presence of corruption in the form of government influence over judicial decisions that seriously undermines judicial independence,” the study said. This is in contrast to the US, where the appointment process to the Supreme Court is heavily politicised but the government wields little influence over judges once their appointment is finalised. 

Judges also strengthened their prospects by writing the judgement instead of just passing the favourable order. Writing the judgement brings more visibility and hence more chance of being rewarded. It is also a more credible way for judges to signal their willingness to conform to the government’s preferences in their post retirement jobs. 

Judges did not indulge in more benign means such as strategic delay or hastening of decisions to please the government

The data showed that the judgements of prominent cases decided in favour of government were more likely to be written by the judge who retires 16 months before election. For unimportant cases where government won, however, the judgement was as likely to be written by any of the judges. The judges did not indulge in more benign means such as strategic delay or hastening of decisions to please the government. 

The analysis suggests that the prospect of being appointed to government positions after retirement could be a way in which the executive exercises control over an otherwise independent judiciary in countries with judicial term limits.

It is possible that not all judges respond to such incentives. Only a section of judges retiring long before an election who are corruptible respond to them by deciding in favour of the government.

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